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Friday, August 23, 2013

time to decriminalise assisted dying in canada

This last week doctors organized under the Canadian Medical Association met for their policy convention in Calgary. A whole bunch of sensible policy recommendations came out of this meeting, including the suggestion that our kids should no longer be able to purchase energy drinks.

But commentators writing for national news organizations concluded, in typical handwringing style, that the CMA failed us terribly by not issuing a recommendation on the issue of the decriminalization of assisted dying.

I don’t think that was much of a failing. In fact, I don’t quite understand why it should matter more what doctors think than what you or I think about our own death. Why should they have a bigger say or stake in the manner of our own dying? I guess it could matter if they were to be forced to participate in assisted dying if it were to be decriminalized. The thing is, that would not be the case, anyway, so why get overly excited about our doctors’ views on the matter?

Where are we in the assisted dying stakes, anyway? Quebec has decided that assisted dying is no more than part of continuing medical care, and so, by its lights, it is its decision alone how it regulates this matter since health care is one of those powers entrusted to the provinces through the Constitution. The provincial government is intent on making assisted dying a possibility.

Quebecers overwhelmingly support this. There is even cross-party support in the province for the proposed legislation. The National Assembly is currently debating it. You can be sure that the federal government – currently controlled by conservative Christians – will try to have this provincial law set aside by the courts, and to be fair, there is a serious constitutional issue at stake here! The constitutional issue isn’t – as you might expect – about assisted dying, but about the question of whether our provinces should be able to set aside the parts of the federal Criminal Code that prohibit assisted dying by redefining it as a provincial health matter. If they were able to do so, what parts of the Criminal Code might be next?

Independent of the goings-on in Quebec, the Supreme Court of British Columbia declared in a 2012 ruling those parts of the Criminal Code that criminalize assisted dying unconstitutional. The federal government has appealed this decision and we should hear within the next few months how that went. However the Court of Appeals decides, the losing party will undoubtedly try to get this matter heard by the Supreme Court of Canada.

It is always tricky to predict how court judgements, especially Supreme Court of Canada judgements, will pan out. The latter, protests from legal eagles notwithstanding, has plenty of leeway to determine the course of assisted dying in this country.

I’m optimistic that decriminalization in some form or shape will eventually occur. The reason for this is essentially that our Charter of Rights and Freedoms places a very high value on respect for the autonomous choices we make for ourselves. That explains why suicide is legal in Canada. That also explains why we have the legal right to stop life-extending medical care at any time. Short of having us declared incompetent, doctors cannot treat us against our wishes.

Given this context, it doesn’t seem to be a great stretch for a court to determine that we also have the right to assistance in dying. Respect for our individual freedom will win out. It has on the abortion fronts, it has on the marriage equality front, and it will win on the assisted dying issue, too. As a species we seem bent on placing individual rights and freedoms, as far as self-regarding actions are concerned, above conservative values that have others determine what’s best for us.

The countervailing arguments against decriminalization are pretty thin - and that is putting it mildly. In the old days the same anti-euthanasia campaigners who busily contribute to public debate today were pretty clear that assisted dying would violate their religious rules, and so none of us should have access to it, regardless of our own worldviews. They have since realized that this kind of arguments doesn’t exactly help their cause among the wider Canadian public. Accordingly, they switched their campaigning to concerns about possible abuses of never-clearly defined “vulnerable” people.

Given that pro-choice campaigners are concerned about individual free choice and also our quality of life, the strategic shift in the anti-choice rhetoric to testable claims about worrying slippery slopes is actually to be welcomed. It is a fair enough question to ask whether disabled people, the poor and others you could reasonably describe as more vulnerable than some other classes of patients would be put at risk if we decriminalized assisted dying. No doubt the courts will look at this issue in great depth and detail.

The reason for my optimism on this front is that we know from jurisdictions that have decriminalized that there is no evidence that vulnerable people are disproportionately represented among those who receive assistance in dying. From some jurisdictions we even have firm data demonstrating that abuse has actually decreased since decriminalization. Even if there were a limited number of clear, uncontroversial cases of abuse in societies that have decriminalized, we would still need to establish that that abuse was a result of decriminalization.

The anti-choice campaigners have a habit of carefully fudging the issues here. Their claim that decriminalization has led to reductions in the quality and availability of palliative care also turns out to be without any basis in fact. None of the actual evidence we have fits the anti-choice campaigners’ scaremongering tactics, hence their ever-more-hysterical-sounding claims on that front.

With the exception of Quebec, I think it is fair to say that this country has been let down disgracefully by its elected representatives. Opinion poll after opinion poll - and this includes polling undertaken by anti-choice campaigners, too - concludes that an overwhelming majority of Canadians support the decriminalization of assisted dying. That, combined with the lack of evidence of a slippery slope to unwanted killings as a result of decriminalization in societies that have legalized assisted dying in some form or shape, makes a pretty powerful case for the decriminalization agenda.

Not so in the eyes of our elected representatives. They have caved in to the religious right’s lobbying and scaremongering on this issue, instead of showing the leadership we can rightfully expect of them. For what it’s worth, this failing cuts across party lines. Even the so-called Liberal Party of Canada, whose very name suggests that it should proudly support decriminalization, is to be found on the wrong side of history on this issue. The good news for us is that the courts will not be susceptible to pressure from religious and other campaigners.

Udo Schuklenk holds the Ontario Research Chair in Bioethics and Public Policy at Queen's University. He has chaired a panel of international experts drafting a landmark report on end-of-life issues on behalf of the Royal Society of Canada. He tweets @schuklenk